KAMLESH Vs. URMILA DEVI

JUDGEMENT

(1.) THE petitioners/defendants No. 1, 2 & 3 have invoked the jurisdiction of this Court under Article 227 of the Constitution to challenge the order dated 15.9.2014 passed in Case No. 99/12 ED by first Civil Judge, Class -II, Jaura, District Morena.

(2.) THE respondent/plaintiff filed the present suit for declaration and injunction. The petitioners filed their written statements. The trial Court framed issues on 5.12.2013. The plaintiff's witnesses filed their affidavits under Order 18 Rule 4 CPC. The Court below decided the application under Order 9 Rule 7 CPC filed by defendants No. 11 to 13. The said application was allowed on payment of Rs.2000/ - as cost. Thereafter, on 9.9.2014, the defendants No. 1 to 3 and 11 to 13 prayed for time to cross -examine the plaintiff. The Court below by order dated 9.9.2014 allowed the adjournment to the counsel for the defendants No. 1 to 3 subject to payment of Rs.200/ - as cost. It was made clear by the Court below that in absence of paying the cost, the right to cross -examination may be closed.

(3.) THE Court below rejected the said contention and opined that no order of High Court is produced to show that the earlier orders are stayed. It is mentioned by Court below that payment of cost was the condition precedent for cross -examination. Since the petitioner has refused to pay the amount of cost, the Court below closed the right of cross -examination of the petitioners. In the petition, it is challenged on the ground that if cost was not paid, the Court below could have passed a separate order indicating the amount of cost which could be executable against the petitioners. It is further submitted that the Court below has erred in imposing the cost. Reliance is placed on Section 35 -B of CPC to submit that if cost is not paid, it can be included in the judgment/decree. Lastly, it is pleaded that in similar circumstances, the Court below passed an order dated 13.10.2014 (Annexure P -6) and in the said case upon not depositing the cost, the amount of cost is directed to be included in the decree. Same course should have been followed in the present matter.